Sandhu v. Sidhu

2023 BCSC 1860 Sandhu v. Sidhu

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sandhu v. Sidhu, 2023 BCSC 1860 Date: 20231024 Docket: M142184 Registry: New Westminster Between: Amarjit Sandhu, Anita Sandhu, Shweta Sandhu, Genus Sandhu by his Litigation Guardian Anita Sandhu, and Nikhil Sandhu by his Litigation Guardian Anita Sandhu Plaintiffs And Gurpreet S. Sidhu also known as Gurpreet Sidhu and Nara Transport Limited Defendants Before: The Honourable Justice Matthews Reasons for Judgment In Chambers No one appearing for the Plaintiff, Genus Sandhu: Counsel for the Defendants: C.D. Jago Place and Date of Hearing: New Westminster, B.C. October 13, 2023 Place and Date of Judgment: New Westminster, B.C. October 24, 2023 Table of Contents Overview.. 3 Pattern of Ignoring the Court Processes Culminating in Failure to Attend Trial. 3 Application to Dismiss. 7 Costs. 11 Special Costs or Ordinary Costs. 12 Costs Against Mr. Sangha Personally. 14 Disposition. 15 Overview [1] Genus Sandhu was in a motor vehicle accident on July 6, 2010 in Surrey with several other family members. She[1] was 10 years old at the time of the accident. Through her litigation guardian, she was one of several plaintiffs from the same family to commence this litigation. [2] Subsequently, there was a consent order that a trial be proceed for her case alone. The defendants issued a jury notice and the trial was set to proceed on October

10, 2023 at which time Ms. Sandhu was 24 years old and so no longer required a litigation guardian. Ms. Sandhu had been represented by Hardeep Sangha, of Calgary, since February 10, 2021. Neither Ms. Sandhu nor Mr. Sangha attended the trial. Neither of them advised the court or defence counsel that they would not be attending until the morning the trial was to commence, and then only after defence counsel and the court's scheduling personnel made inquiries of Mr. Sangha's office. [3] The defendants seek the action to be dismissed and costs of the action to be paid by Mr. Sangha personally and assessed as special costs. Alternatively, they seek special costs paid by Mr. Sangha for part of the proceeding. In the further alternative, they seek ordinary costs be paid by Ms. Sandhu. Breaches of Rules and Court Orders Culminating in Failure to Attend Trial [4] This proceeding was commenced on May 4, 2012. The record before me does not demonstrate what activity took place pertaining to Genus Sandhu's claim until May 4, 2020, when the court ordered that the claims of Genus Sandhu be heard on a different date than the remainder of the plaintiffs in the action. [5] On February 10, 2021, Mr. Sangha filed a Notice of Change of Lawyer and became the lawyer for Genus Sandhu. [6] On June 30, 2022 counsel for the defendants set Ms. Sandhu's trial to commence October 10, 2023 for seven days

with the agreement of Mr. Sangha on behalf of Ms. Sandhu. On the same day, counsel for the defendants filed a Notice of Trial and a Notice Requiring Trial by Jury. [7] On June 21, 2023, counsel for the defendants filed a Requisition to set down a trial management conference ("TMC") to take place on August 9, 2023. [8] On June 23, 2023, counsel for the defendants obtained an order from Master Krentz that the plaintiff attend an independent medical examination ("IME") with Dr. Simon Horlick on June 27, 2023. Counsel for the defendants advised me that Ms. Sandhu had not attended a previous IME at the request of the defendants but an application was necessary because she did not agree to attend the appointment arranged by the defendants. The affidavit evidence filed on that application demonstrates that Ms. Sandhu's counsel, Mr. Sangha, did not respond to multiple communications about the IME. Neither Mr. Sangha nor Ms. Sandhu attended the application before Master Krentz. [9] Ms. Sandhu did not attend the IME. [10] On August 9, 2023, counsel for the plaintiff and counsel for the defendants appeared before Master Dick at the TMC. The defendants' trial brief was filed on July 18, 2023. It confirmed that the trial was to be by jury. Mr. Sangha did not file a trial brief on behalf of Ms. Sandhu. At the TMC, Master Dick made ten orders with respect to the trial, including that the

plaintiff was to file a trial brief by 4:00 PM on August 11, 2023 and that the plaintiff pay the defendants' costs of the TMC. [11] On August 15, 2023, counsel for the defendants e-mailed counsel for the plaintiff with a draft TMC order for his signature. Mr. Sangha did not return the signed TMC order to counsel for the defendants. Mr. Sandhu did not comply with any of the orders made at the TMC, including that a trial brief be delivered. [12] On August 24, 2023, the defendants filed an application seeking an order dismissing Ms. Sandhu's claim on the basis that she had failed to attend the IME ordered by the court, contrary to the order of Master Krentz, and had failed to file a trial brief, contrary to the TMC order of Master Dick. The application was heard by Justice Girn. Neither Ms. Sandhu nor Mr. Sangha attended despite that Mr. Sangha agreed to the date for the application. Justice Girn ordered the plaintiff to pay the cancellation fees for the missed IME, within 30 days of the conclusion of the trial, and ordered costs of the application in any event of the cause. [13] On September 15, 2023, the defendants filed a trial certificate and the trial record. [14] On October 3, 2023, counsel for the defendants sent a draft document agreement and a draft index to the joint book of documents to Mr. Sangha. In the letter appending those documents, counsel for the defendants

noted that Mr. Sangha had not complied with any of the TMC orders. He stated that the matter was still set for trial on October 10, 2023 for seven days with a jury. He stated that if the plaintiff failed to attend at trial, the defendants would bring a motion to have the plaintiff's claim dismissed with costs. [15] On October 4, 2023, New Westminster Scheduling sent an email to counsel for the defendants and to Mr. Sangha asking if the trial was proceeding on October 10, 2023 for seven days. Counsel for the defendants replied, copying Mr. Sangha, that the defendants intended to proceed to trial. Counsel for the defendants does not know if Mr. Sangha replied. [16] On October 6, 2023, New Westminster Scheduling emailed counsel, at my request, to ask them to attend a TMC at 9 am on October 10, 2023 to address issues prior to jury selection at 10 am that day (the first email said October 11, 2023, but it was subsequently corrected to October 10, 2023). Counsel for the defendants confirmed he would attend. I was informed by New Westminster Scheduling that Mr. Sangha also confirmed. [17] On October 6, 2023, counsel for the defendants emailed Mr. Sangha because he had not had a reply to his October 3, 2023 correspondence and repeated his statement that the defendants would seek costs thrown away if the matter did not proceed on October 10, 2023. Mr. Sangha emailed counsel for the

defendants in reply and stated that he would email him later that day. He did not. Counsel for the defendants emailed Mr. Sangha again on October 6, 2023 and, among other things, told Mr. Sangha that they were expected to appear at 9 am on October 10, 2023. Mr. Sangha did not respond. [18] On October 10, 2023, counsel for the defendants was in attendance at 9 am. The array of prospective jurors was staring to arrive at the courthouse in New Westminster. Neither Mr. Sangha nor Ms. Sandhu attended the 9 am TMC. Counsel for the defendants advised that he telephoned Mr. Sangha's office that morning, spoke with Mr. Sangha's assistant and inquired whether Mr. Sangha would be attending. Counsel for the defendants advised me that he received a call back from Mr. Sangha's assistant who told him that Mr. Sangha would not be attending the trial. [19] Between the October 10, 2023 TMC and the 10 am time for trial commencement, I asked New Westminster Scheduling to call Mr. Sangha and determine what the situation was. The Scheduling manager advised me that she spoke to Mr. Sangha's assistant who said that Mr. Sangha would not be attending trial and did not have instructions. [20] Shortly after 10 am on October 10, 2023 the matter was called for trial. Neither Mr. Sangha nor Ms. Sandhu were present. I asked for the jury array be brought in. I advised the array that the trial was not

proceeding and that they were excused from further attendance for jury selection. [21] Counsel for the defendants advised me that he had instructions to bring an application to dismiss Ms. Sandhu's claim but he wanted the opportunity to seek instructions on what form of costs to ask for. He also sought leave to bring the application during the time set for the trial, as his calendar was clear. I granted short leave for the application to be brought October 13, 2023 at 9 am and directed that counsel for the defendants serve Ms. Sandhu with the application and supporting materials by delivering them to Mr. Sangha by 4 pm on October 11, 2023. Application to Dismiss [22] Subrules (2), (5) (f) and (6) of the Supreme Court Civil Rules, R. 22-7 are applicable. They read as follows: (2) Subject to subrules (3) and (4), if there has been a failure to comply with these Supreme Court Civil Rules, the court may (a) set aside a proceeding, either wholly or in part, (b) set aside any step taken in the proceeding, or a document or order made in the proceeding, (c) allow an amendment to be made under Rule 6-1, (d) dismiss the proceeding or strike out the response to civil claim and pronounce judgment, or (e) make any other order it considers will further the object of these Supreme Court Civil Rules. (5) Without limiting any other power of the court under these Supreme Court Civil rules, if a

person, contrary to these Supreme Court Civil Rules and without lawful excuse, (f) if the person is the plaintiff or petitioner, a present office of a corporate plaintiff or petitioner or a partner in or manager of a partnership plaintiff or petitioner, the court may dismiss the proceeding (6) If a person, without lawful excuse, refuses or neglects to comply with a direction of the court, the court may make an order under subrule (5) (f) or (g). [23] The appellate authorities make it clear that an order dismissing a claim or striking out a response is a draconian remedy to be used sparingly: Barrie v. British Columbia (Forests, Lands and Natural Recourse Operations), 2021 BCCA 322 at para. 103; House of Sga'nisim v. Canada (Attorney General), 2007 BCCA 483 at para. 28; Besic v. Kerenyi, 2012 BCCA 187 at paras. 16-17 and 20-22; Homer Estate v. Eurocopter S.A., 2003 BCCA 229 at para. 4; and Dhillon v. Pannu, 2008 BCCA 514. [24] The reason to resist dismissal where there is non-compliance with the Supreme Court Civil Rules and/or a court order is because the goal of the justice system is to try matters on their merits. However, an order of dismissal for failure to comply with the Supreme Court Civil Rules is appropriate in egregious cases such as multiple flagrant and unexcused breaches of the rules and/or orders of the court, because a merits-based determination may not be

possible if the rules and court processes are continuously frustrated. [25] The applicable principles that emerge from the cases, in addition to the exercise of restraint, are as follows: a) The onus is on the party defending the application to establish lawful excuse and explain the reason for his non-compliance: Eisele v. B.A. Blacktop Ltd., 2004 BCSC 521 at para. 15; and Balaj v. Xiaogang, 2012 BCSC 231 at para. 36. b) Fundamental failures, such as failure to make appropriate disclosure of documents or records, must be treated as a serious default: Breberin v. Santos, 2013 BCSC 560 at para. 57. c) A dismissal order will not usually be granted on a first application for relief arising from procedural delay and will not usually be granted until the plaintiff has been warned that dismissal will follow upon further delay or obstruction: Breberin v. Santos, 2013 BCSC 560 at paras. 58-59. See also Dhillon at paras. 34-36. d) Lesser sanctions ought to be considered where any are available and appropriate: Breberin at para. 60. e) A persistent pattern of delay and persistent failure to comply with the Rules of Court and court orders, may result in a dismissal order: Breberin at para. 62. [26] The facts of this case disclose a consistent pattern of failing to comply with the Supreme Court Civil Rules and court orders and that started around the time of the court application for an

IME heard by Master Krentz. [27] The Supreme Court Civil Rules provide that a defendant may require a plaintiff to attend an IME. Usually, such attendances are agreed to as a matter of course in personal injury cases. Court applications are sometimes made when a defendant seeks the plaintiff to attend multiple IMEs. Sometimes a court application is necessary because there is a debate about the appropriateness of the first IME or the terms on which the plaintiff will attend. In this case, none of those typical circumstances applied. Mr. Sangha did not respond to the communications scheduling the IME and so a court order was necessary. Neither Mr. Sangha nor Ms. Sandhu attended the application. The order was made. Ms. Sandhu did not attend the IME. [28] Arguably, the failure to agree to the IME, without requiring a court application when there was no substantive reason to oppose it, was in breach of the rules. There is no doubt that the failure to attend was in breach of a court order. No explanation has been given for either. I consider the failure to attend the IME to be a fundamental failure, such as a failure to make discovery by delivering documents or submitting to an examination for discovery. [29] The next breach of the Supreme Court Civil Rules was failing to file a trial brief. No explanation has been provided. That was compounded by failing to file a trial brief as

ordered by Master Dick. That is the second failure to comply with an order of the court that has not been explained. [30] In addition, Mr. Sangha, on behalf of Ms. Sandhu, did not comply with the other orders made by master Dick. Not all of those orders were necessarily applicable. For example, I understand that no expert reports were ever filed by either party. However, some of the orders were clearly applicable, such as providing witness names, addresses and will say statements, exchanging updated lists of documents, providing a draft document agreement, making best efforts to have a comprehensive document agreement and a common book of documents and delivering a trial schedule. There are at least four breaches of the TMC orders other than failing to file the trial brief. [31] The failure to file a trial certificate is a further breach of the Supreme Court Civil Rules. [32] Ms. Sandhu's non-compliance with court rules and court orders in relation to her failure to attend the IME when required to do so by order of Master Krentz, and to file a trial brief when required to do so by order of Master Dick, were the subject of an application to dismiss. Justice Girn exercised restraint and did not dismiss the action but ordered Ms. Sandhu to pay the cancellation fee. [33] Since then, there have been further violations of court orders and Supreme Court Civil Rules, culminating in the

failure to attend the 9 am TMC on the day of trial and the trial itself. [34] While not a formal direction from the court, the failure to attend the 9 am TMC, set to address the matters that must be addressed before jury selection, is egregious conduct on the part of Mr. Sangha. [35] Neither Mr. Sangha nor Ms. Sandhu have provided an explanation nor attend this application to oppose the relief sought. Ms. Sandhu, through Mr. Sangha, had notice that the defendants would seek to dismiss her action if she did not attend at the trial. [36] In my view, this pattern of non compliance with the Supreme Court Civil Rules and court orders was persistent and prolonged with no explanation. Several of he breaches directly frustrate a trial on the merits, such as not attending the IME and not attending trial. The failure to attend trial, especially in the context of the other evidence, leads to the inference that Ms. Sandhu is not interested in a trial on the merits and so will continue to frustrate such occurring. She has not attended this application with evidence as to why the court should conclude otherwise. [37] I conclude Ms. Sandhu's action should be dismissed. Costs [38] Having dismissed the claim, the question becomes whether I should order costs for all or part of the proceeding in favour of the defendants. [39] Generally speaking, costs follow the cause. Ms. Sandhu has not

appeared to question the application of that general proposition. I see no reason why it should not apply. The real questions are whether the costs should be ordinary costs or special costs and whether I should order all or part of the costs to be payable by Ms. Sandhu's lawyer, Mr. Sangha, personally. [40] Subrules (14), (15) and (33) (c) and (d) of Supreme Court Civil Rules, R. 14-1 are applicable. They read as follows: (14) If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order (a) that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or (b) that the party pay the costs incurred by any other party by reason of the act or omission. (15) The court may award costs (a) of a proceeding, (b) that relate to some particular application, step or matter in or related to the proceeding, or (c) except so far as they relate to some particular application, step or matter in or related to the proceeding and in awarding those costs the court may fix the amount of costs, including the amount of disbursements. (33) If the court considers that a party's lawyer has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault, the court may do any one or more of the following: (c ) order that the

lawyer be personally liable for all or part of any costs that his or her client has been ordered to pay to another party; (d) make any other order that the court considers will further the object of these Supreme Court Civil Rules. Special Costs or Ordinary Costs [41] It is well understood that special costs are only awarded in exceptional circumstances where the conduct of the party against whom they are awarded has engaged in reprehensible conduct, a term that encompasses conduct on a spectrum from "milder forms of misconduct deserving of reproof or rebuke" to "scandalous or outrageous conduct": Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242, 1994 CanLII 2570 (C.A.) at para. 17. [42] Improper conduct in the proceeding itself can be reprehensible: Garcia at paras. 23, 25. However, not all forms of misconduct are reprehensible: Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352 at para.

73. Special costs should not be a bonus for a successful outcome: Westsea at para.

73. Where special costs are warranted, they are usually warranted for the whole proceeding, but if that is disproportionate, a partial award may be made: Gichuru v. Smith, 2014 BCCA 414 at para. 91; and Commonwealth Trust Company (In Liquidation) (Re), 2012 BCCA 138 at para. 44. [43] Egregious conduct is "something more" than a weak case. The courts often describe the conduct with words such as "improper", "persistent", "abuse", "misleading" or "egregious": Garcia at paras. 23, 25 and Westsea at para. 73. [44] The following conduct cumulatively is improper conduct in the proceeding that is readily described as reprehensible because it was persistent and worthy of punishment: a) failing to communicate with counsel for the defendants despite multiple requests to do so about the IME scheduled for June 2023 necessitating an application; b) not attending the application for an IME; c) not attending the IME; d) knowing that the matter was going to be a trial by jury, failing, in a timely manner, to address whether Ms. Sandhu would be attending her trial in order avoid the cost and inconvenience of of summoning citizens to participate in jury selection and potentially sit as jurors. That cost and inconvenience was borne by the defendants, the justice system participants and the jury array; e) failing to file a trial brief after being ordered to do so; f) failing to comply with the

orders made at the TMC; g) failing to advise the court, in response to the October 3, 2023 communication from Scheduling, that Ms. Sandhu and her counsel would not be attending trial; h) failing to advise the court, in response to the October 6, 2023 communication from Scheduling personnel setting a 9 am TMC on October 10, 2023, that Ms. Sandhu and her counsel would not attend that TMC or the trial; i) failing to communicate to the defendants that the plaintiff and her counsel would not be attending trial until the morning of the trial when defendants counsel initiated the contact; j) failing to communicate to the court that the plaintiff and her counsel would not be attending trial until the morning of the trial when the court's Scheduling personnel initiated the contact. [45] There is no conduct that has been brought to my attention that warrants a special costs prior to the failure to communicate about the IME. I consider it disproportionate to order special costs of the entire proceeding. I order ordinary costs up to June 15, 2023, the day before that application was filed. [46] In addition, given that costs have already been ordered for the August 9, 2023 TMC and the September 19, 2023 application before Justice Girn, those steps are excluded from the special costs order. [47] I order special costs in favour of the defendants from June 16, 2023 forward, with the exclusion

of the August 9, 2023 TMC and the September 19, 2023 application before Justice Girn. Costs Against Mr. Sangha Personally [48] There is a high threshold at common law for the exercise of the court's discretion to order counsel to pay costs personally. When special costs are sought under R. 14-1(33), rather than at common law, they will only be ordered if the conduct of the target lawyer was reprehensible. [49] In Nazmdeh v. Spraggs, 2010 BCCA 131, the Court of Appeal held that this R. 14-1(33) has a punitive function that supports the court's power to control its processes. The Court of Appeal also held that special costs may be appropriately ordered where there is reprehensible or serious misconduct in the litigation process. [50] In Davies v. Canada Shineray Suppliers Group Inc., 2017 BCSC 1729 at para. 57, Justice Fisher, then of this court, explained that the court's power to order special costs against lawyers is often exercised pursuant to the court's inherent jurisdiction to control the proceedings in a manner that maintains respect for the court and for the administration of justice, citing Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26 at para. 16 which in turn cites Young v. Young, [1993] 4 S.C.R. 3, at p. 136 and Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting, reasons approved in 2002 SCC 63, [2002] 3 S.C.R.

307. See also Pacific Mobile Corporation v. Hunter Douglas Canada Ltd., [1979] 1 S.C.R. 842, at p. 845; Quebec (Attorney General) v. Cronier, 63 C.C.C. (2d) 437 (Que. C.A.) at p. 448; and Pearl v. Gentra Canada Investments Inc., [1998] R.L. 581 (Que. C.A.), at p. 587. [51] In Jodoin, the Court explained that conduct justifying an award of special costs against a lawyer must represent "a marked and unacceptable departure from the standard of reasonable conduct expected of a player in the judicial system"; mere mistakes, errors of judgment or even negligence will not be sufficient; "there must at the very least be gross neglect or inaccuracy". [52] In many cases, the conduct that is the subject of a special costs award against a lawyer personally is conduct that is readily attributable to the lawyer and not the client because it is conduct such as obstructive behaviour or gross incivility in the courtroom. In this case, the conduct is failing to communicate, the breach of rules, and breaches of orders. [53] However, in my view, when the whole of the circumstances known to the Court and to the defendants are taken into account, much of the conduct can be attributed to Mr. Sangha personally and, regardless of his instructions or the lack thereof, amounts reprehensible conduct given his duties of fairness and civility and as an officer of the court. It is "gross neglect" of his

duties as referred to in Jodoin. [54] For example, Mr. Sangha's failure to attend at a trial and not initiate any communication that he will not be attending at the very earliest opportunity is conduct that is aptly described as "gross neglect". When it is seen, as I see it, as part of a pattern of neglecting to communicate what appears to be the disinterest of Ms. Sandhu or her counsel, or both of them, in prosecuting this matter commencing at least in June 2023, Mr. Sangha's gross neglect takes on much larger proportions. [55] The consequences of the gross neglect are exacerbated by the fact that this was to be a jury trial. Mr. Sangha's failure to communicate that Ms. Sandhu was not prepared to proceed to trial to defence counsel and the court, despite multiple opportunities to do so, inconvenienced the dozens of people who were summoned and had to either seek to be excused or attend for jury selection that did not proceed. In addition, the judicial system resources that were diverted to prepare for this trial are considerable. Mr. Sangha's gross neglect of his duty to the court brought the administration of justice into disrepute generally and specifically in the eyes of the array of potential jurors. [56] I consider this to be a rare case warranting special costs be paid by Mr. Sangha personally. Those shall be the special costs I have delineated above. Disposition [57]

Ms. Sandhu's action is dismissed. [58] I order ordinary costs in favour of the defendants payable by Ms. Sandhu for this proceeding up to and including June 15, 2023. I order special costs in favour of the defendants from June 16, 2023 forward, with the exclusion of the August 9, 2023 TMC and the September 19, 2023 application before Justice Girn. The special costs are payable by Ms. Sandhu's counsel, Hardeep Sangha. "Matthews J." [1] The style of cause, and in particular the words "his Litigation Guardian" indicates that Genus Sandhu is a male person. However, the medical records pertaining to Genus Sandhu state that her gender is female and so I will use female pronouns.